CANADA PROVINCE OF QUEBEC
DISTRICT OF ______
LOCALITE ______COURT OF QUEBEC
NO: ______(Criminal Chamber)
Between
______
Applicant
-and-
Attorney General for Quebec
Respondent
APPLICATION TO QUASH
AND RETURN OF CONTROLLED SUBSTANCE
(C.C.C S.601 and C.D.S.A S.24, not the Charter)
TO ONE OF THE HONOURABLE JUDGES OF THE COURT (CRIMINAL CHAMBER) FOR THE DISTRICT OF ______SITTING IN FIRST INSTANCE AND SEIZED OF THE MOTION, the Applicant states:
THE APPLICATION IS FOR AN ORDER declaring that:
A.1) the Accused'sCDSA charges relating to marijuana be
quashed as of no force and effect; and if jurisdiction:
A.2) absent a viable medical exemption, the prohibitions on
marijuana in the CDSA are of no force and effect; and
A.3) the word "marijuana" be struck from CDSA Schedule II;
A.4) all convictions registered since Aug 1 2001 until Smith
corrected the Bad Exemption be expunged.
B) staying any charges under S.5 Trafficking when both
Possession and Production of the substance being no longer
prohibited brings the administration of justice into disrepute.
C) the seized Controlled Substance be returned to Applicant
pursuant to S.24 of the CDSA.
AND FOR ANY ORDER abridging any time for service or amending
any error or omission as to form, color, font, margins,
content which the Honourable Justice may allow.
1. The grounds of the Application are:
1) POLCOA: Parliament Only Legislates, Courts Only Abrogate.
Pursuant to Interpretation Act S.32(a), the prohibitions on
possession and production of marijuana in the CDSA were not
revived by repealing the defects in the MMAR and remain of
no force and effect since struck down in Parker [2001] and
Krieger [2003]. Once the offences were no longer in force,
Only Parliament Legislates new law, the Ontario Court of
Appeal could not revive the prohibitions that had been of no
force or effect the previous 2 years. Parliament has never
re-enacted the prohibitions since they were struck down;
2) BENO: Bad Exemption means No Offence. Just as the Hitzig
"Bad Exemption" [2003] by regulated Mis-Supply meant there
was "No Offence" in force since Aug 1 2001 absent an acceptable
medical exemption when J.P. was charged; so too, the
prohibitions should have been declared not in force after
A) Sfetkopoulos declared the MMAR unconstitutional
for the re-imposition of the first Hitzig supply cap;
B) Beren declared the MMAR unconstitutional for the re-
imposition of the two Hitzig supply caps;
C) Smith declared a Worse "Bad Exemption" [2015] by
regulatedMis-Use meaning there was "No Offence" in force
since Aug 1 2001 absent an acceptable medical exemption;
D) Allard declared the MMPR in its entirety unconstitutional
from April 1 2014 to Aug 24, 2016;this Court is bound by the Ontario Court of Appeal's J.P. precedent to declare that NO OFFENCE is in force while the BAD EXEMPTION existed.
PART I - FACTS
R. V. PARKER [2000]
3. On July 31 2000, the Ontario Court of Appeal in R. v.
Parker declared the prohibition on possession of marijuana
inCDSA s.4 to be invalid absent an adequate medical
exemption; suspended 1 year for time to set up a viable
acceptable constitutional working medical exemption during
which time Parker was exempted from the Cultivation and
Possession prohibitions in the CDSA. Leave to appeal to the
Supreme Court of Canada was not sought.
R. V. KRIEGER [2000]
4. On Dec 11 2000, Alberta Superior Court Justice Acton
adopted the reasons of the Ontario Court of Appeal to strike
down the prohibition on cultivation in S.7! suspended 1
year.
MMAR Marijuana Medical Access Regulations [2001]
5. On July 30, 2001, Health Canada issued the Marihuana
Medical Access Regulations MMAR to comply with the
requirement for an acceptable medical exemption to the
prohibitions but with no time for Terry Parker to apply
before his one-year exemption expired the next day. The MMAR
did not provide Parker with an exemption to replace his
expiring court-exemption, it provided him an application
form with one day to line up his doctors and get it
submitted for an exemption.
6. On Aug. 1 2001, Terry Parker's court exemption lapsed
without his being exempted in compliance with the Order of
the Parker Court despite Health Canada's claim to have
instituted a working exemption form on time.
R. V. KRIEGER [2003]
7. On Mar 18 2003, the Alberta Court of Appeal dismissed the
Crown appeal of the Acton decision striking down the S.7
prohibition on production. Application for Leave to Appeal
to the Supreme Court of Canada #29569 denied.
HITZIG V. HMQ [2003]
8. On Oct 7 2003 in Hitzig v. HMQ, the Ontario Court of Appeal determined that the MMARs would become constitutional if the following parts were immediately declared of no force and effect:
a) The prohibition against an ATP holder compensating a DPL
holder for growing marihuana;
b) The provision preventing a DPL holder from growing
for more than one ATP holder;
c) The prohibition against a DPL holder producing marihuana
in common with more than two other DPL holders; and
d) The second specialist requirement.
9. Parts a) and d) impeded access while Part b) and c) impeded supply.
BENO
10. In Paragraph 170:
[170] In R. v. Parker, supra, this court declared the
prohibition invalid as of July 31, 2001 if by that date
the Government had not enacted a constitutionally sound
medical exemption. Our decision in this case confirms
that it did not do so. Hence the marihuana prohibition
in s. 4 has been of no force or effect since July 31, 2001.
11. Only a few parts, not the entirety of the MMAR regime,
was declared of no force, but enough so that the exemption
was illusory. A car missing spark plugs is not
malfunctioning in its entirety but it's not working. So only
those few defective parts of the MMAR rendered the regime
constitutionally dysfunctional and had to be struck down.
Partly defective still caused the Parker-Krieger
declarations of invalidity of the Possession offence to take
effect.
REVIVAL OF CDSA PROHIBITIONS
12. The Hitzig Court went on further to state that their
striking down the defective parts of the MMAR has revived
the prohibitions in the CDSA that had been of no force since
July 31 2001.
[170] First, if we do not suspend our order, there will
immediately be a constitutionally valid exemption in
effect and the marihuana prohibition in s. 4 of the CDSA
will immediately be constitutionally valid and of full
force and effect.
[170].. our order has the result of constitutionalizing
the medical exemption created by the Government. As a
result, the marihuana prohibition in s. 4 is no longer
inconsistent with the provisions of the Constitution.
Although Parliament may subsequently choose to change
it, that prohibition is now no longer invalid, but is of
full force and effect. Those who establish medical need
are simply exempted from it.
13. In R. v. Johnny Dupuis, Judge Chevalier accepted his
doctor's testimony of his medical need even though Health
Canada had disagreed with his diagnosis and rejected his
exemption application and found him not guilty. He is simply
exempted by establishing medical need and yet so many
medically-needyaccuseds keep making the news.
R. V. J.P (YOUTH) [2003]
14. Professor Alan Young had not asked Hitzig Justice
Lederman to invoke the Parker and Krieger rulings to deal
with the CDSA prohibitions. But R. v. J.P. that same day had
asked to strike the CDSA prohibition for absence of
exemption!
15. On Jan 2 2003, in R. v. J.P. (Youth) Ontario Provincial
Court Judge Phillips quashed the charge ruling No S.4
Possession Offence on the grounds the exemption was
unconstitutional without Parliament re-enacting the section
whether the MMAR worked or not. J.P. had no medical need.
16. On May 16, 2003, Ontario Superior Court Justice Rogin
dismissed the Crown's appeal in J.P. 2,000 remaining
marijuana possession charges laid while there was a Bad
Exemption and No Offence starting on Terry Parker Day Aug. 1
2001 were stayed or withdrawn across Ontario.
17. On Oct 7 2003, the Court of Appeal granted the Crown's
appeal against the MMAR having been improperly legislated
whether the MMAR had worked or not but still sustained the
quash of J.P.'s Possession Count because their Hitzig ruling
had established that there had not been a valid Exemption:
[14]... The Parker order by its terms took effect one
year after its pronouncement. That order was never
varied. After the MMAR came into effect, the question
was not whether the enactment of the MMAR had any effect
on the Parker order, but rather whether the prohibition
against possession of marihuana in s. 4 of the CDSA, as
modified by the MMAR, was constitutional. If it was, the
offence of possession was in force. Paired with the
suspension of the declaration in Parker, this would have
the effect of keeping the possession prohibition in
force continually. If the MMAR did not create a
constitutionally valid exception, as we have held, then
according to the ratio in Parker, the possession
prohibition in s. 4 was unconstitutional and of no force
and effect. The determination of whether there was an
offence of possession of marihuana in force as of April
2002 depended not on the terms of the Parker order but
on whether the Government had cured the constitutional
defect identified in Parker. It had not.
[15] The order made by Lederman J. in Hitzig in January
2003 did not address the prohibition against possession
in s. 4 of the CDSA. While, according to the ratio in
Parker, supra, Lederman J.'s determination that the MMAR
did not provide an adequate medical exemption meant that
there was no constitutional prohibition against
possession of marihuana in s. 4 of the CDSA, Lederman J.
did not make that declaration...
[16]... whether there was a crime of possession of
marihuana in force on the day the respondent was charged
turned on whether s. 4 combined with the MMAR created a
constitutional prohibition against the possession of
marihuana....
[31] The court in Parker, supra, declared that the
marihuana prohibition in s. 4 was inconsistent with the
Charter and consequently of no force or effect absent an
adequate medical exemption...
[32]... After the MMAR came into force, the question
therefore became whether the prohibition against
possession of marihuana as modified by the MMAR was
constitutional. If it was, then the possession
prohibition was in force. If the MMAR did not solve the
constitutional problem, then the possession prohibition,
even as modified by the MMAR, was of no force or effect.
[33] There was no need to amend or re-enact s. 4 of the
CDSA to address the constitutional problem in Parker.
That problem arose from the absence of a
constitutionally adequate medical exemption. As our
order in Hitzig demonstrates, the prohibition against
possession of marihuana in s. 4 is in force when there
is a constitutionally acceptable medical exemption in
force.
[34] We would dismiss the appeal. [of the Crown]
18. Though J.P. had no medical need, Absent Exemption means
Prohibition invalid is repeated no less than eight times!!
twice in paragraph [14], in [15], [16], [31], [32], and
twice more in [33]. A Bad Exemption means No Offence. BENO.
4,000 MORE POSSESSION CHARGES DROPPED
19. On Dec. 3 2003, and after Leave to Appeal the J.P.
decision to the Supreme Court of Canada was not sought the
Crown stayed all remaining 4,000 charges across the rest of
Canada under the section deemed to be repealed during the
HitzigBENO period of exemption invalidity, after July 31
2001 up until October 7, 2003, medical need or not, but did
not stay any remaining production charges due to the Krieger
invalidation of the S.7. prohibition.
SEEDS & DRIED MARIJUANA MITIGATE SUPPLY CAPS
20. On Dec 10 7 2003, Health Canada re-imposed the same
patient-to-grower and growers-to-garden caps that had
rendered the MMAR unconstitutionally dysfunctional in
Hitzig. The Government sought to address the "supply" defect
by authorizing a new government supply for seeds and dried
cannabis (marihuana). Sadly, supplying seeds has no effect
on patient-grower and growers/site ratios! And selling dried
marijuana to non-growers does not affect growers either!
SFETKOPOULOS
21. On Jan 10 2008, in Sfetkopoulos v. Canada, Alan Young
challenged the re-imposed patients-to-grower cap which his
Hitzig decision had struck down and had it struck down
again. He did not again seek to strike down the re-imposed
growers-to-site cap which his Hitzig decision had struck
down. And again, no motion was made to follow Parker and
Krieger rulings to declare the CDSA prohibitions of no force
while the exemption was dysfunctional.
22. Once again, the Exemption was found to be
unconstitutional but this time but there was no J.P.
companion appeal to address the constitutionality of the
CDSA while the exemption had been defective as J.P. had been
there for Hitzig, so the Parker/Krieger principle was not
considered though the judge should have and no charges laid
during the period of invalidity back to Dec 3 2003 were
stayed.
23. But Crown Attorney Sean Gaudet did mention the fear
someone else would ask for BENO in their Supreme Court of
Canada Memorandum:
"[33] The Court in R. v. J.P. ruled that the combined
effect of Parker and Hitzig meant there was no
constitutionally valid marijuana possession offence
between July 31 2001 and Oct 7 2003, the date the MMAR
were constitutionally rectified by the decision in
Hitzig. Courts may construe the Federal Court of
Appeal's decision as creating a similar period of
retrospective invalidity dating back to December 3 2003,
the date that s.41(b.1) was re-introduced into the
MMAR."
BEREN
24. On Feb 2 2009, in R. v. Beren, applying the reasoning in
Hitzig and Sfetkopoulos, Koenigsberg J. found that s 41(b.1)
of the MMAR, which limited DPL holders to a single client,
and s 54.1, which prohibited production license holders from
operating in common with more than two others, were both
contrary to s 7 of the Charter. She struck down these
specific provisions of the MMAR.
[134].. these provisions, unduly restricting DPLs from
growing for more than one ATP or growing in concert with
two other DPLs, are hereby severed from the MMAR.
25. Exactly the same two supply limits found in Hitzig that
caused the exemption to be deficient enough to warrant dropping over 4,000 charges last time but not this time. From Dec 2003 when Health Canada re-imposed the caps up to 2009 when they were struck down again, the exemption had been tainted with the same two supply flaws as the original pre-HitzigMMAR that had rendered the prohibitions invalid. The Court was not asked to follow J.P.'s Parker/Krieger BENO precedent, did not follow the BENO precedent and convicted the Accused charged while the exemption had been invalid.
MERNAGH [2012]
26. In R. v Mernagh [2012], once Ontario Superior Court
Justice Taliano had ruled that over 90% of doctors not
participating in the MMAR made the exemption
unconstitutionally illusory, he was asked to and did follow
the Parker and Krieger decisions to declare the S.4
Possession and S.7 Production prohibitions of no force while
the exemption had been absent.
27. The Ontario Court of Appeal overturned Mernagh ruling
that the patients had failed to establish any non-medical
reasons for 90% of Canada's doctors not participating.
Perhaps all those doctors had some contraindications against
marijuana use, the patients had not been asked if their
doctors had any medical reasons for refusing! The Crown
stayedMernagh's charges so he couldn't ask his patients for
the non-medical reasons their doctors had used to refuse.
28. But BENO was the correct remedy to declare Parker and
Krieger had taken effect upon discovering a dysfunctional
exemption regime.
R. V. SMITH [2015]
29. The Supreme Court of Canada in Owen Smith [2015] ruled:
[33] We would dismiss the appeal, but vary the Court of
Appeal's order by deleting the suspension of its
declaration and instead issue a declaration that ss. 4
and 5 of the CDSA are of no force and effect to the
extent that they prohibit a person with a medical
authorization from possessing cannabis derivatives for
medical purposes.
30. Smith argued MMAR restricted consumption to "worst use"
smoking. Of all the regulations designed by Health Canada to
impede access and maximize mortality, prohibiting the most
effective use of a medication and mandating its most
dangerous form of ingestion has to be it. Dried bud on a
nose cancer won't work, nor will smoking. Topical
application takes prohibited oil. All good citizens with
cancer who obeyed their exemption regulations could not use
it to cure their tumors. Banning best use sure makes the
exemption to use the medicine dysfunctional all by itself, a
far more genocidal violation of the Right to Life than any
caps on gardening ratios found in Hitzig: Mis-Application by
prohibiting optimal use and mandating use in its most
dangerous form, smoking, violated the right to life of many
more corpses than any supply flaw ever did.
31. Given a reduction from 5 or even 10 grams of bud down to
each gram of oil, prescriptions based on presumed smoking
are therefore inordinately insufficient. A patient with the
Health-Canada recommended maximum of 5 smokable dried grams
per day gets 1/2 a gram of oil to apply to a 3-inch tumor?
32. So Smith only struck down the flaw in the MMAR, was not
asked to follow Parker-Krieger.
MMPR Marijuana for Medical Purposes Regulations [2014]
33. By the time Smith declared the theMMAR
unconstitutional, it had already been repealed by the new
MMPR on April 1 2014. For the whole of the MMAR, it was not
a valid medical exemption.
ALLARD MANSON GRANDFATHERED HALF OF THE POSSESS PERMITS
34. On Mar 18 2014 almost 6 months after the MMPR ordered
theshut down of the all patient grows by April 1, 2014, was
the Allard motion before Justice Manson to extend patient
permits. Robert Roy's possession and production permits were
expiring that very day. Justice Manson reserved his decision
for three days. On Mar 21, he grandfathered all grow permits
but not all possess permits needed to use the grow permits.
Only those possession permits still not expired were
extended. Robert Roy lost the possession permit he needed to